engineer a signal to apply brakes; the engineer will do so, making a twenty (20) pound reduction; the inspector will then start toward the head end, and the rear brakeman toward the rear end, both inspecting the brakes, and seeing that they are all set. On arrival at the caboose, rear brakeman will give the engineer a signal to release brakes, and if they release all right, he will then give a "highball" to pull out.' Brakeman and inspector will have with them a supply of airbrake defect cards, and tack them on all cars having defective brakes, stating the nature of the defects. "J. L. HAYES, "Trainmaster." Plaintiff was head brakeman, and, according to this bulletin order, owed no duty to inspect the train for the purpose of discovering defects in the brakes and in their operation. But plaintiff says that, when he was injured, he was performing no service such as the rule above stated refers to, and was performing a service in the line of his duty. Upon this subject the trainmaster of defendant, who had charge of the yards at Saginaw and was called as a witness by defendant, testified: "I say it is the duty of a brakeman of a freight train to put a light at the rear of his train every time he goes between his train to perform his work in the yards, if he should go there. Suppose there is a leak in the air machinery when the air is put through the freight train, and it becomes necessary to cut off the air from_the_engine, the brakeman or inspector would cut it off. I understand Mr. Sonsmith was injured while he was doing that very thing. "Q. Then he was in the performance of his duty, wasn't he, in attempting to cut out the air from that train that morning? "A. Yes, sir." He further testified: "Q. Well, the inspection of these brakes have got to be made, haven't they? "A. Yes, sir. "Q. It is their train while these brakes are being inspected? "A. Yes, sir. "Q. And they have got to attach the engine to the train; that has got to be done too, of course, before you can get the air through the train? "A. Yes, sir. "Q. The brakemen have got to loosen any hand brakes that may be tight, haven't they? "A. Yes, sir. "Q. They have got to do a number of incidental things, haven't they? "A. Yes, sir. "Q. Before the train departs; that is right, isn't it? "A. Yes, sir. "Q. And yet this train belongs to the switch crew right up to the time the lantern signal is given at night to pull it out? "A. Yes, sir." The traveling engineer of the defendant testified: "Q. Now, Mr. McLachlan, the duty of the brakeman was to cut out the air from the engine, wasn't it, when he found a leak in the car? "A. Yes; I suppose he would do it as soon as he would get around to it." The general yardmaster of defendant in charge of the Saginaw yards testified: "If a brakeman has taken it on himself to go in between the cars and make any repairs, he hasn't any right to do it unless he protects himself in the proper manner, with a red light at the end or red flag being placed out in the center of the drawbar on that train. "Q. But, if the plaintiff happened to cut out the air from the engine, do you call that repairing the train? "A. No; I don't. It is one of the incidental and ordinary duties of a brakeman, when they come in on the road, to shut off their air, and I believe it is the duty of the head brakeman to cut out the air when it is necessary from the engine in the train. It is not his duty to connect the air to the engine and the train. We have car inspectors to do that.” A freight conductor, a witness for defendant, testified: "Q. And the air connections are made by the brake 178 MICH.-5. man in charge of the train between the engine and the first car? "A. As a general rule. It is not the brakeman's duty, when a leak is discovered in the air machinery, if his train is in the yards, to disconnect the air from the engine. "Q. Now, under the car inspector's duties, let me read you what the duties are in rule 597, and ask if this does not refresh your recollection in regard to the proposition: "They [referring to car inspectors] must couple and uncouple all air and steam connections on passenger trains, carefully examine the couplings in all trains after they are made up and report to the trainmaster any imperfections.' "Don't that refresh your recollection to the extent that it was one of the duties of the crew, to the extent that it is only the duty of the car inspector by the rule, to connect the air on passenger trains? "A. It is also their duty on freight trains. "Q. Have you got any other rule? "A. Well, it is done, and, if it wasn't their duty, it is a cinch they wouldn't do it. I cannot say how many times I ever saw them disconnect the air from the engine to take out a car for imperfections or defects. Sometimes you have to throw a car out, not very often. "Q. Now, there is no question but what it was the duty of the brakeman to couple up the air to the train in question, is there? "A. Well, they always do. The forward brakeman always takes care of that." The engineer of the stone run train testified: "When I noticed this leak, I did not do anything toward trying to remedy it. I did not touch it. I was on the right-hand side of the engine. Sonsmith was on the opposite side. I don't know whether he was holding a light for me or not. I did not make an examination at the time that I noticed this leak, to see what was wrong. It blew my torch out, when he turned the air on it blew my torch out. I didn't make any further examination. About that time the cars moved ahead. * * * When the cars were moved ahead, I was just getting out between the cars, just getting out between the cars after I made this examination. When they moved forward, it indicated there was some one on the rear end of that train. Some engine or car was on the rear end shoving it ahead. When the leak was noticed, it was the proper thing to cut off the air. I couldn't tell you whose duty it was to cut off the air. Mr. Sonsmith turned it on, and I presume it was his duty to shut it off. I don't know that it was Sonsmith's duty to turn it off. I couldn't say as to that. "Q. You presume it was his duty? “A. Well, I don't say for sure for that. I was just getting out from between the cars when they were moved forward, being struck from the rear. I don't remember whether I said anything at the time the cars were moved forward or not. I saw Sonsmith after he was injured. I went to where he was lying on the ground. I saw his injuries. I said at that time that I just got out, and that it was a lucky thing for me that I escaped. They have an inspector that looks after the airbrake connections after the train is made up in the yard. I couldn't tell who makes the air connection between the engine and the train as the engine is being attached to the train. I don't know whose duty it was that morning to make the air connection on this stone run freight train in the yard. I don't know that Sonsmith did it. I didn't do it. I don't know as a matter of fact that it was the duty of one of the brakemen when the engine was coupled to the train in the yard for the brakeman to make the air connection to turn on the air between the engine and the train. I am not positive that they do it right along either. I couldn't tell you whose duty it was to cut off the air if there is a leak in the air connection and that leak is discovered by the brakeman.” Plaintiff testified that he did not see the bulletin order which has been referred to, and never knew of a custom prevailing in the yards of defendant, if it did prevail, which permitted switching crews, without notice to train crews, to take cars from and restore them to a train which had been made up. Among other printed rules and instructions contained in the book furnished by defendant to employés is instruction No. 256, reading: "Employés of every grade are warned to see for themselves, before using them, that the machinery and tools. which they are expected to use are in proper condition for the service required, and trainmen, especially, must examine and know for themselves that the brake shafts and attachments, ladders, running boards, steps, handholds and other parts and mechanical appliances which they are to use are in proper condition; if not, to put them in proper condition, or see that they are so put before using them." In view of the foregoing and other testimony, and assuming that the switching crew had the right to take away and restore cars to the train, we cannot say as matter of law, that before attempting to cut off the air from the engine plaintiff was required by rule 26, a portion of which has been set out, to place a signal at the rear of the train between the tracks for his protection; nor can we say that the switching crew, in view of all the circumstances, were warranted in restoring the cars to the train without warning to the trainmen. The proper interpretation of rule 26 does not seem to us to be the one contended for by defendant, nor, as we have seen, is it the interpretation given to it by some at least of its superior agents. We conclude there was testimony from which the jury had the right to find that the switching crew were negligent, and that their negligence contributed to the plaintiff's injury. We come, then, to the questions which involve the meaning and the validity of Act No. 104, of the Public Acts of 1909, which is here set out: "An act to prescribe the liability of common carrier railroad companies to their employés. "The People of the State of Michigan enact: "SECTION 1. Every common carrier railroad company in this State shall be liable to any of its employés, or, in case of his death, to his personal representative for the benefit of his widow and children, if any; if none, then for his parents; if none, then for his next of kin, for all damages which may result from the negligence of any such railroad company or from the negligence of any of its officers, agents or employés, or by reason of any defect or insufficiency due to the negligence of any such common carrier railroad company in its cars, engines, appliances, machinery, track, road bed, works, boats, wharves, coal docks or other equipment. "SEC. 2. In all actions hereafter brought against any such common carrier railroad company under or by virtue |